Kerala High Court
N. Babu, Executive Engineer, K. ... vs T.M. Poulose, Assistant Executive ... on 26 March, 2003
Author: Kurian Joseph
Bench: Kurian Joseph
JUDGMENT Jawahar Lal Gupta, C.J.
1. Was the action of the Kerala State Electricity Board in filling up the seven posts of Executive Engineers (Electrical) from amongst the members of the Scheduled Castes / Tribes in conformity with the provisions of Rule 17-A? This is the short question that arises for consideration in these cases. A few facts as relevant for the decision of the case may be briefly noticed.
2. The Board constituted a committee to review the issue of representation of scheduled castes and scheduled tribes in various categories of posts. This committee met on April 26, 1989. It inter alia found that there was a deficit in representation in the cadres of Deputy Chief Engineer and Executive Engineers. Against a total of 224 posts at the top executive level, there were only 5 scheduled caste officers and none from the category of scheduled tribes. Thus, it decided that two posts at the level of Deputy Chief Engineers and 9 posts in the cadre of Executive Engineers "may be filled up by direct recruitment." The recommendations of the committee were placed before the Board. These were considered in the meeting held on December 30, 1989. It was inter alia decided that 5 post of Executive Engineer (Electrical) may be filled up from the category of scheduled castes and 2 from amongst the members of scheduled tribes. Similarly, one post each of Deputy Chief Engineers (Civil) was to be filled up from amongst the members of scheduled castes and scheduled tribes. Accordingly, a requisition was sent to the Kerala Public Service Commission for selection of persons for appointment to the two categories of posts.
3. In pursuance to the request from the Board, the Kerala Public Service Commission issued an advertisement on January 15, 1991. It invited applications for 7 posts of Executive Engineer (Electrical) and 2 posts of Executive Engineer (Civil). Similarly, applications were also invited for the other categories of posts. The process of selection was completed in the year 1993. On October 20, 1993, the Public Service Commission intimated the result of selection to the Board as well as the candidates.
4. Aggrieved by the action of the authorities in proceeding to fill up the posts of Executive Engineers by direct recruitment from amongst the categories of scheduled castes and tribes, an Assistant Executive Engineer in the Board filed a petition under Article 226 of the Constitution viz. O.P.No. 15360 of 1993. This writ petition was presented to the Court on November 8, 1993. After the filing of the petition, the Board issued an order dated November 23, 1993, by which 5 persons were appointed as Executive Engineers by direct recruitment.
5. Aggrieved by the action of the Board in appointing the 5 persons as Executive Engineers, another Assistant Executive Engineer filed O.P. No. 16534 of 1993. The 5 persons who had been appointed as Executive Engineers by direct recruitment were impleaded as respondent Nos. 3 to 7. This writ petition was presented to the Court on December 1, 1993. Notice of both the petitioners was issued to the respondents.
6. In response to the notice, a counter affidavit was filed on behalf of the Board in O.P. No. 16534/1993 by Mr. K.P. Kamalakara Babu, Legal Liaison Officer. It was inter alia averred that the special recruitment was made on the basis of the recommendations of the review committee. This committee had proceeded "on the assumption that special recruitment is to be done for 'a minimum of one post and a maximum of 5%' and that only five persons belonging to scheduled castes are available in the Top-level Management of the Board. Both these assumption have now (been) revealed to be against facts. At least eleven person belonging to scheduled castes/scheduled tribes were seen working in the Board on the date of the above minutes. The recommendation was also against the provisions of G.O.(P) 263/70/PD dated 6-8-1970 as modified by subsequent orders available which provide that special recruitment is to be made to one gazetted post in department where the total number of posts is less than 100 and 1% of the gazetted posts in other department." It was further averred that special recruitment can be made only to middle level executive and to lower posts. The post of Executive Engineers belong to the top-level category. Thus, in view of the order dated November 27, 1980, the special recruitment could not have been made to the posts of Executive Engineers. It was also pointed out that 18 persons belonging to the category of scheduled castes/scheduled tribes were actually working in the Board on December 31, 1995. This was in excess of the required strength. Thus, it was conceded that the representation of the two categories was "far in excess."
7. A separate counter affidavit was filed in O.P. No. 16534 of 1993 by respondents 3 to 5 and 7. It was inter alia averred that there were a total of 224 posts at the top executive level. Only 5 members of scheduled castes were members of the cadre. Therefore, 17 more posts should have been filled by direct recruitment. This was the position in April 1989. Thus, it was claimed that the action of the respondent-authorities in making the appointments was legal and valid.
8. A reply affidavit was filed by the petitioner in O.P. No. 16534 of 1993. Along with it, copies of the orders issued by the Government vide letters dated July 17, 1980 and May 7, 1981 were produced as Exts. P4 and P5.
9. Both the petitioners were posted before a learned Single Judge of this Court on December 18, 1997. The petition were disposed of with the direction that the State Government should consider the issued of special recruitment under Rule 17A of the Kerala State and Subordinate Services Rules, 1958 to the top level executive posts of Kerala State Electricity Board. IF "it is found desirable, then fix the number of posts to be filled up by direct recruitment in that cadre. The decision shall be taken on these matters by the State Government within three months from the date of receipt of a copy of thus judgment ... The appointments already made under special recruitment scheme may be cancelled if it is found to have been made contrary to the existing Government rule." With these observations, the writ petitions were disposed of. Aggrieved by the order, respondent Nos. 3, 4, 5 and 7 in O.P. No. 16534 of 1993 have filed W.A. No. 677 of 1998. The petitioner in O.P. No. 16534 of 1993 has filed W.A. No. 838 of 1998. Respondent No. 6 in the above said writ petition, who had not even filed a counter affidavit, has filed W.A. No. 1509 of 1998. An appeal viz. W.A. No. 1905 of 1998 has also been field with the leave of the Court from O.P. No. 15360 of 1993. The Board has filed W.A. Nos. 1844 and 1846 of 1998.
10. It appears that the direction given by the learned Single Judge was not carried out. However, the Special recruits were promoted as Deputy Chief Engineers. Aggrieved by the orders of promotion etc., a petition under Article 226 of the Constitution viz. O.P. No. 5777 of 1999 has been filed. This petition was ordered to be heard along with the aforesaid appeals by a learned Single Judge. Thus, all the seven cases have been posted together before this Bench.
11. The arguments have been primarily addressed in W.A. Nos. 1844 and 1846 of 1998 which have been filed by the Board. Mr. Sudhakara Prasad, learned counsel for the Board, has contended that the factual position as existing on the date of the notification of the vacancies to the Public Service Commission had to be seen. Since the members of the scheduled castes were not adequately represented in the cadre of Executive Engineers, the Board was competent to make special recruitment under Rule 17A. The action was in conformity with the provision. The necessary parties had not been implied. Thus, the action of the Board in appointing 7 persons by direct recruitment called for no interference. It was legal and valid. The claim as made by Mr. Prasad was supported by Mr. Ajaya Kumar, learned counsel for the appellants in W.A. No. 677/1998.
12. On the other hand, learned counsel for the respondent-writ petitioners have controverted the claim as made by the counsel for the appellants. Mr. Nayanar has contended that the special recruitment was not in conformity with the rules. Similarly, Smt. Asha appearing for the appellant in W.A. No. 838/1998 and the petitioners in O.P. No. 5777/1999 has submitted that the special recruitment as well as the orders of further promotions were not based on a correct assumption of facts. Thus, the counsel submit that the special recruitment as made by the Board deserves to be annulled. Consequential orders of further promotion should also be quashed.
13. It is in the background of the above contentions that the question as posed at the outset has to be examined. It is - "Was the action of the Kerala State Electricity Board in filling up the seven posts of Executive Engineers (Electrical) from amongst the members of the Scheduled Castes / Tribes in conformity with the provisions of Rule 17-A?"
14. The counsel for the parties are agreed that the Board has not framed any rules or regulations to regulate the recruitment to different posts in the service. It is following the rules as promulgated by the State Government. The counsel for both sides also admit that the provisions of the 1958 rules govern the recruitment. These rules embody general provisions which are applicable to the various State and Subordinate Services, including the posts in the Board.
15. In view of the agreement of the counsel for the parties, we shall examine the question as posed at the outset in the light of the relevant provision. The two provisions which deserve notice are contained in Rules 14 and 17A. Rule 14 provides for reservation of appointments. In Clause (a), it has been provided that:
"The unit of appointment for the purpose of this rule shall be 20, of which two shall be reserved for scheduled castes and scheduled tribes and 8 shall be reserved for the other backward classes and the remaining 10 shall be filed on the basis of merit."
The above provision clearly provides that for the members of scheduled castes and tribes, the total reservation is 10%. 40% reservation has been made for 'other backward classes.' The remaining 50% posts have to be filled up on the basis of merit. It is also the admitted position that the reservation is allowed only in the matter of direct recruitment. There is no provision for reservation in promotion. Rules 15 and 16 provide for rotation of vacancies. Rule 17 provides for what has come to be known as a roster. Rule 17A carves out an exception. It reads as under:
"17A. Special recruitment from among the Scheduled Castes and Scheduled Tribes: - Notwithstanding anything contained in these rules or in the special rules, the State government may reserve a specified number of posts in any service, class, category or grade to be filled by direct recruitment exclusively from among the members of Scheduled Castes and Scheduled Tribes.
This rule shall be deemed to have come into force with effect from 25-11-1959."
A perusal of the above provision shows that the rule begins with a non-obstante clause. Irrespective of the fact that a particular post may be required to be filled up by promotion, the State Government has reserved to itself the power to fill up a specified number of posts in any service, class, category or grade by members of scheduled castes/tribes. The obvious purpose of Rule 17A is to ensure that in case adequate number of persons belonging to scheduled castes/tribes is not appointed to a service or in a part thereof, the deficit may be made up by making special recruitment from amongst the members of the two categories. It is in the light of the provisions embodied in rules 14 and 17A that the validity of the Special Recruitment as made by the Board has to be considered.
16. It would be appropriate to notice the factual position briefly.
17. Admittedly, a committee had been constituted to review the issue of the representation of members of scheduled castes and tribes in the Board. The posts of Executive Engineers are a part of the category, which has been considered as 'top executive." The committee had found that the total number of posts was 224. Only 5 members of scheduled caste had been appointed. Thus, it had decided that 2 posts of Deputy Chief Engineers and 9 posts of Executive Engineers may be filled up by direct recruitment. Out of these 11 posts, 3 posts were to be filled up from amongst the members of the scheduled tribes.
18. A copy of the minutes of the meeting of the committee has been produced as Ext. P2 with O.P. No. 16534 of 1993. A perusal of these minutes shows that while considering the issue of representation at the top executive level, the committee had taken into consideration the posts of "Chief Engineers, Financial Advisors, Deputy Chief Engineers, P.R.O., Chief Personnel Officer, Senior Accounts Officer, Special Officer (Revenue), Executive Engineers and Personnel Officers. It was also noticed that the number of Executive Engineers was 160. It was on this basis that the total number was fixed at 224. Resultantly, a decision to appoint 11 persons from amongst the categories of scheduled castes and scheduled tribes was taken.
19. On behalf of the petitioners, it has been pointed out that the factual basis on which the committee had proceeded was wrong. In fact, the number of posts of Executive Engineers was not 160 but 149. Reliance has been placed on the 'Annual Administration Report' circulated by the Board for the year 1993-1994. The cadre strength of officers as on April 1, 1993, has been given int his report. So far as the posts of Executive Engineers (Electrical) are concerned, the total number was shown as 149. It is not the case of the respondents that the number of posts was ever reduced after 1989. Thus, if a total of 15 persons belonging to the category of scheduled castes and tribes were to hold the posts of Executive Engineers, the requirement of Rule 14, which provides for reservation of 10% posts, shall be fulfilled. In that event the two classes shall be apparently adequately represented in the cadre of Executive Engineers (electrical) leaving no room for Special Recruitment.
20. The counsel for the writ petitioners have further pointed out that in fact, 15 persons belonging to the category of scheduled castes were actually in position on the posts of Executive Engineers prior to November 23, 1993 when 5 persons were actually appointed by special recruitment. Is it so?
21. A perusal of paragraph 6 of O.P. No. 16534 of 1993 shows that a categorical statement was made by the petitioner that "at present, there are only less than 150 posts of Executive Engineer in the Electrical wing. under respondents 1 and 2 (including 8 vacancies which have arisen after the promotion of Abdulsalam in October 1993) and more than 10% of them are employees belonging to S.C/S.T. even excluding respondents 3 to 7." Still further, the names of 14 persons which the petitioners could recollect, were given. It was also averred that they belonged to the category of scheduled castes and tribes. They are working as Executive Engineers. It was also averred that if the Board had resorted to the norma promotion to the cadre of Executive Engineers, Mr. Sasidharan belonging to the category of scheduled castes would have been promoted. Thus, 15 persons would have been in position. Despite this factual position, the Board has resorted to special recruitment and appointed respondent Nos. 3 to 7.
22. The averments as made in the petition were not controverted in the counter affidavit filed on behalf of the respondents. The factual position was not disputed by the Board. In fact, it was the case of the Board that the committee had proceeded on a wrong assumption of facts. Still further, even in the reply filed on behalf of the private respondents in the writ petition, the position taken was that the 14 persons "were not promoted as Executive Engineers either at the time of the reporting of the vacancies to the Public Service Commission or at the time of" review by the committee. A majority of them have been promoted only subsequently. On this basis, it was sought to be contended that the action was valid.
23. It is not disputed that the total reservation in any service cannot exceed 50%. It is also admitted that 40% of the posts are reserved for members of 'other backward classes.' Thus, the members of scheduled castes and scheduled tribes are only entitled to 10% of the posts. This being the factual position and that total number of posts of Executive Engineers (Electrical) being 149, the number of persons appointed by reservation form the category of scheduled castes/tribes could not have been in excess of 15. It was not disputed that 14 officers belonging to these categories were actually in position in the year 1993. One more viz. Mr. Sasidharan could have been appointed by promotion if the normal rules were followed. Yet, special recruitment was resorted to. Why?
24. Mr. Prasad, learned counsel for the Board, submits that in the year 1989, the number of persons belonging to the category of scheduled castes and tribes holding the posts of Executive Engineers were only 5. It was to make up the deficit that the committee had made a recommendation. He further submits that the position had to be seen on the date the vacancies were notified to the Public Service Commission and not at the time of appointment.
25. In this behalf, as already noticed, the Board had categorically admitted in its counter affidavit that the committee had proceeded on a wrong assumption of facts. Still further, a perusal of the Annual Report as published by the Board, clearly shows that on April 1, 1993, the total number of Executive Engineers (Electrical) was 149. Thus, it is clear that the committee had wrongly assumed the number to be 160. Mr. Prasad submits that this included the number of Executive Engineers (Civil) also. Assuming it to be so, the total number of persons who could have been appointed to the cadre of Executive Engineers (Electrical and Civil) could be 16. It has not been shown that the statement made in the writ petition that 14 persons were already working as Executive Engineers (Electrical) is wrong. One was due to be promoted. Thus, even if the total number of posts is taken to be 160, the deficit could be at the most 2. Not 11 as assumed by the committee.
26. Mr. Prasad contends that the position had to be seen in the year 1989 or at the time of the notification of the vacancies to the Commission.
27. This contention cannot be accepted. Admittedly, the purpose of Rules 14 to 17-A is to ensure that members of scheduled castes and tribe are adequately represented in the services in the State. In the present case, the representation had to be ensured in the cadre of Executive Engineers. This being the purpose of reservation and the rule making authority having taken a decision that 10% shall be the due representation, the number could not have exceeded the prescribed percentage at the time of any recruitment. The position had to be seen only at the time of making the appointments and not at the time of the advertisement of the posts. The rules do not suggest that even if the members of scheduled castes and tribes are adequately represented in the service, the special recruitment can be resorted to. If the contention of Mr. Prasad is accepted, the Authority shall get a license to misuse the power. To illustrate: Certain vacancies, say five, may arise in the cadre of Executive Engineers. These may have to be filled up by promotion. The Authority may notice that there is a deficiency of five person from amongst the members of Scheduled castes and/or tribes. Exactly five officers belonging to this class are available for promotion. It delays promotion and sends a requisition to the Public Service Commission. Having done that, it passes the order of promotion of the five officers belonging to that class on the net day. Can it still fill up the five posts of Executive Engineers by Special Recruitment? We think it would be illegal to allow the Board to do so. The Authority has to see the facts on the date of filling up the posts. It cannot resort to Rule 17-A by itself creating an artificial deficit.
28. Learned counsel contends that Rule 17A beings with a non-obstante clause. Thus, irrespective of the provisions of Rule 14 or any other special rules, the Board can fill up posts from amongst the members of scheduled castes and tribes by direct recruitment. This contention cannot be accepted. In this behalf, it deserves notice that the Government has issued various orders from time to time. The first order, which has been placed on record, is a copy of the letter dated August 6, 1970. It was produced as Ext. R1(a) by the Board in its counter affidavit in O.P. No. 15360 of 1993. In this letter, it has been categorically stated that "a special recruitment of scheduled castes and scheduled tribes candidates will made to one gazetted post each in departments where the total number of posts is less than 100 and 1 per cent of the gazetted posts in other departments. A special recruitment of scheduled castes and scheduled tribes candidates will be made to 5 per cent of the non-gazetted posts in each department, filled up by direct recruitment provided that by such special recruitments, the total number of scheduled castes and scheduled tribes in each category should not exceed the percentages fixed for them under the rules." Thus, it is clear that according to the instructions issued by the Government, the provisions of Rule 17A can be invoked only to ensure that the members of scheduled castes and scheduled tribes get the prescribed representation in the services. It has to be ensured that the total number of scheduled castes and scheduled tribes does not exceed the percentage fixed for them viz. 8 and 2. Still further, this position was reiterated in the subsequent communications. Reference was made to the letter dated July 17, 1980. A copy has been produced by the Board with its affidavit in W.A. No. 1846 of 1998 as an annexure. In this letter, it was mentioned that the Government had clarified that in case of gazetted post, the reservation would be "10% of the gazetted posts in the department including promotion post and direct recruitment post." In paragraph 3, after review of the previous instructions, it was categorically observed as under:
"In order to make more effective the operation of the special recruitment from among Scheduled Castes/Scheduled Tribes to make up the backlog, and to make it more purposeful, and to ensure adequate representation to them in Government service, it is found necessary that they should be given 10% representation in almost all categories of posts as far as possible."
A perusal of the above order issued by the government makes it clear that the special recruitment can be resorted to only for the purpose of ensuring that members of scheduled castes and scheduled tribes were given 10% representation in different categories of posts. The purpose of special recruitment cannot be to given them posts beyond 10%. This being the Government's intention and the Board having produced these document with its affidavit, it cannot now even suggest that special recruitment can be made so as to grant a representation in excess of 10%. Thus, the contention that the non-obstante clause in Rule 17A permits the Board to exceed the limit of 10% cannot be sustained. In fact, it deserves notice that in the pleadings, it has not been suggested by the Board that the limit of 10% can be crossed. Equally, the documents produced on behalf of the Board do not indicate that such a course of action is permissible. In fact, it appears to be the admitted position from the pleadings that the special recruitment was being made to make up for the deficit. Since we have found that the deficit was based on a wrong assumption, the action of the Board in making appointment by Special Recruitment to the posts of Executive Engineers was not in conformity with the provisions of the statutory rules.
29. Mr. Prasad contends that the non-obstante clause has to be given full effect. He places reliance on certain decisions of this Court. The first of these decisions is in State of Kerala v. Sivadas, 1979 KLT 678.
30. This was a case where there was a backlog. The process of special recruitment was resorted to, with the purpose of making up the backlog. On a consideration of the matter, the Bench had held as under:
"The non-obstante clause in the Rule is quite wide and comprehensive and is sufficient to get rid of any other provision in the Rules including Rule 14. Two meanings may perhaps be attributed to the non-obstante clause; one that Rule 17A is in displacement of Rule 14 and other Rules; and the other that it is supplementary to these. We think that the latter is the more reasonable construction, as meant to advance the object of the Rule and suppress the mischief which it wanted to avoid."
Thus, it was held that the rule was supplemental. In other words, the process of special recruitment can be resorted to when the members of the scheduled castes and tribes were not adequately represented in the service. The provision of Rule 17A can be invoked to make up the deficit. It could not be invoked to violate the provision contained in Rule 14. This appears to be an absolutely correct interpretation of the provision. Otherwise, the rule itself may be open to the criticism of being violative of Articles 14 and 16 of the Constitution. If the provision was interpreted to mean that notwithstanding the limit fixed in Rule 14, the competent authority can make special recruitment to any extent from amongst the members of the scheduled castes and tribes, the total reservation may exceed 50%. In fact, on the argument of Mr. Prasad, it can even go up to 100%. Surely, such a situation cannot be countenanced. Such an interpretation cannot be supported by any principle or law. It would defeat the principle of equality as enshrined in Articles 14 and 16 of the Constitution. Thus, it cannot be accepted.
31. In this context, it has to be remembered that the provisions enabling the reservation have to be strictly construed. Equally, the mandate of Article 335 has to be kept in view. If Article 16 embodies only an enabling provisions, the provision of Rule 17A cannot be given a more liberal interpretation.
32. Mr. Prasad contends that the special recruitment cannot be challenged by the writ petitioners as the necessary parties had not been impleaded. No order to the prejudice of the persons an be passed in their absence. The claim as made on behalf of the Board and the other appellants has been controverted by the counsel for the writ petitioners.
33. It is undoubtedly correct that no order to the prejudice of a person can be passed without hearing him. However, in the present case, two facts deserve notice. Firstly, it is the admitted position that O.P. No. 15360 of 2003 had been presented to the Court on November 8, 1993. On that day, the Board had not made any appointment by special recruitment. Thus, even if the persons were not impleaded as parties, their appointments would be governed by the principles of lis pendens. These would be subject to the decision of the writ petition. Still further, it is the admitted position that the order of appointment in favour of five persons was issued on November 23, 1993. Thereafter, O.P. No. 16534 of 1993 was filed on December 1, 1993. These 5 persons who had been appointed vide order dated November 23, 1993 were impleaded as respondent Nos. 3 to 7. Thus, it cannot be said that the writ petitioners had approached this Court without impleading the necessary parties. It is undoubtedly true that the Board had appointed two more persons vide order dated April 12, 1994. However, these appointments were made during the pendency of the aforesaid two petitions. These shall be governed by the decision of the writ petition. Another fact which deserves mention is that even after the petitioners had been decided and the Government had been directed to consider the matter in the light of Rule 17A, the Board had proceeded to promote all the 7 persons to the posts of Deputy Chief Engineers. Aggrieved by the promotion, two officers from the Board had filed O.P. No. 5777 of 1999. All the 7 persons have been impleaded as parties in the writ petition. They have been duly served. The prayer for quashing their promotions has been specifically made. Even a claim for seniority above them has been made. Despite service, they have not even put in appearance in Court. No counter affidavit has been filed. In this writ petition, a copy of the judgment in O.P. Nos. 15360 and 16534 of 1993 has been produced as Ext. P1. The respondents have notice of both the decisions. Yet, they have chosen to keep away. Even otherwise, it is reasonable to assume that 5 persons out of 7 having been impleaded, the two must have known about the pendency of the case. Taking the totality of circumstances into consideration, we find that the so-called necessary parties have stayed away despite being aware of the pendency of the proceedings. Their interests have been duly represented. The Board is only wanting to use them as a shield. The petitioners are not liable to be dismissed on the ground that necessary parties are not before the Court.
34. Faced with the situation, counsel for the Board and the selected candidates have contended that injustice would occur if the appointments are set aside. It has been submitted that by now, the selected candidates have been in position for a period of almost 8 to 9 years. Resultantly, if they were now ordered to be reverted to their original posts of Assistant Executive Engineers, great injustice would accrue. On the other hand, it has been pointed out by the counsel for the writ petitioners that the special recruits have got an unfair advantage. The petitioner in O.P. No. 16534/1993 has pointed out that his name is placed at Sl. No. 205 in the cadre of Assistant Engineers as on 1-1-1988. At that time, respondent Nos. 3 to 7 who have been appointed by special recruitment, were placed at Sl. Nos. 672, 945, 745, 1175 and 553. Thus, a person who is more than 900 places junior to the petitioner has earned an undeserved advantage over him by the process of special recruitment. Similar is the position in the connected case. It has been further pointed out that despite the direction given by the learned Single Judge vide judgement dated December 18, 1997, the Board had proceeded to promote the special recruits as Deputy Chief Engineers. One of them was even promoted as Chief Engineer.
35. To a person in service, seniority and promotion are matters of utmost importance. It is clear that the writ petitioners have been in service for much longer period than the special recruits. In any event, they are hundreds of places senior to the special recruits. Despite that, the special recruits have stolen a march over them. They were not only appointed as Executive Engineers in the years 1993 and 1994, but were further promoted as Deputy Chief Engineers in the year 1999. One of them was also promoted as Chief Engineer in December 2002. It is to challenge these promotions that the two officers have approached this Court through O.P. No. 5777 of 1999. The grievance of the writ petitioners is that despite their being senior, the said respondent Nos. 3 to 9 have got an undeserved advantage over them. They have gone up in seniority and were promoted only on account of the illegal action of the Board in making special recruitment.
36. After consideration of the matter, we find that it would be unfair now to remove the selected candidates from the posts of Executive Engineers to which they were appointed about 9 or 10 years back. However, having said so, we also feel that it would not be fair to allow them to retain the wholly undeserved advantage of accelerated promotion over persons who were actually senior to them in the cadre of Assistant Engineers or Assistant Executive Engineers. Thus, while allowing the selected candidates to continue on the posts of Executive Engineers, we do not think that it would be fair to allow them to hold the higher post of Deputy Chief Engineers of Chief Engineer. Resultantly, we hold that even though the appointment by special recruitment of the 7 candidates was wholly illegal, they may be permitted to continue on these posts. But, they cannot be permitted to continue on the higher posts of Chief Engineers or Deputy Chief Engineers. They are ordered to be reverted forthwith. Still further, they will not drawn any advantage of seniority by virtue of the Special Recruitment. They will not be promoted to the higher posts of Deputy Chief Engineers and Chief Engineers in preference to the persons who were senior to them in the cadre of Assistant Executive Engineers. The promotion shall be made in the strict order of their seniority as Assistant Executive Engineers.
37. Mr. Prasad has also contended that the writ petitioners in the two writ petitions viz. O.P. Nos. 15360 & 16534 of 1993 had been already retired from service. He points out that the petitioners in the above writ petitions have been granted seniority in the cadre of Executive Engineers at Sl. Nos. 35 and 40 respectively. The special recruits have been assigned position starting from Sl. No. 44 onwards. Thus, the writ petitions should be dismissed as having been rendered infructuous. On behalf of the writ petitioners, it has been pointed out that the grievance was not confined to the fixation of the seniority only. In fact, the petitioners had approached this Court on behalf of the members of the service. Special recruitment has not affected the two petitioners only, but even the other members of the service. Since the special recruitment is illegal, the undeserved advantage should not be allowed to accrue to the respondents irrespective of the fact whether they have been given seniority above or below the two petitioners.
38. The mere fact that respondent Nos. 3 to 9 in O.P. No. 5777 of 1999 have been given seniority above the petitioners in the two petitions cannot mean that the writ petitions have been rendered infructuous. The petitioners had questioned the validity of the special recruitment. not only that. Certain miscellaneous petitions viz. C.M.P. Nos. 403, 404 & 605 in W.A. No. 1844/1998 and C.M.P. No. 1808 of 2003 in W.A. No. 1846 of 1998 have been filed in this Court with the prayer that they be impleaded as respondents in these cases. The obvious reason is that the rights of the whole cadre had been adversely affected. In the circumstances of thee cases, the miscellaneous petitions are allowed. Since the appointments suffer from the vice of illegality, the mere fact that the two petitioners have been given seniority above the selected candidates cannot result in defeating their challenge to the validity of the appointments. This is all the more so as the right of promotion within the service is also involved.
39. Mr. Prasad has also contended that the facts as given in the counter affidavit as initially filed by the Board were not correct. The factual position has now been disclosed in the counter affidavit filed with the memorandum of appeal.
40. Admittedly, the respondent-Board had notice of the writ petition. The competent officer had filed a counter affidavit. Admittedly, the matter had remained pending in this Court for a fairly long time from the year 1993 to 1997. During the four years, no application for amendment of the counter affidavit had been filed. It is only after the decision of the writ petitions that while filing the appeal, the application for placing on record a modified counter affidavit was submitted. We do not find that such a course would be normally permissible. Irrespective of this, we have even examined the factual position as given in the counter affidavit filed along with the memorandum of appeal. A perusal of this counter affidavit shows that the averments as made in paragraph 6 of the petition with regard to the fact that 14 persons belonging to the categories of scheduled castes and scheduled tribes were actually holding the posts of Executive Engineers prior to October 1993 has not been controverted. Still further, the petitioners' allegation that the vacancy caused by the promotion of Mr. A.P. Abdulsalam could have been filed by the promotion of Mr. Sasidharan, a member of the scheduled castes, has also not been controverted. It has been admitted that even on April 26, 1989, the total number of persons belonging to the categories of scheduled castes and scheduled tribes in the cadre of Executive Engineers was 8 and not 5 as mentioned by the review committee. On 1-1-1990, 10 Executive Engineers belonging to the scheduled castes/scheduled tribes were actually in position. The petitioners' allegation that their number had further increased in November 1993 has not been controverted. In this situation, even on the basis of the new counter affidavit, the factual position remains unaltered. Thus, the final result does not change.
41. Another fact which deserves mention is that the Board, in its amended counter affidavit, had admitted that on the basis of the orders issued by the Government, "it is clear that special recruitment can be made in Government service up to 10% of the posts mentioned therein taking into account the total number of Gazetted posts." Thus, the plea as sought to be raised at the hearing that special recruitment can be made by ignoring the percentage of 10% has not been taken in the counter affidavit. Consequently, even on the basis of the amended counter affidavit, the factual and legal position does not change.
42. Mr. Prasad has also referred to the judgment in Hira Lal v. The District Judge, Ghaziabad and Ors. AIR 1984 S.C. 1212. This was a case where their Lordships of the Supreme Court were considering the implication of the Government order providing for reservation of 18% for scheduled castes. In paragraph 5 of the judgment, it was noticed by their Lordships that the factual position was not clear. It was "not known whether some of the recruits of earlier years already in service belonging to the scheduled castes had come on the basis of overall merit without reference to reservation." In view of this factual position, it was observed that if the provision of reservation has to be kept in view, the petitioner was bound to be recruited. It was a decision on the peculiar facts. It is not an authority for the proposition that the number of persons belonging to the category of scheduled castes have to be seen at the time of advertisement of the posts and not at the time of actual filling up existing vacancies. Still further, in a series of decisions, their Lordships have laid down that mere selection for a post does not given a right to any person to claim appointment. The mere fact that certain candidates had been selected did not confer any right on them to be appointed. Reference in this behalf can be made to the decision of the Supreme Court in State of Haryana v. Subhash Chander Marwaha, AIR 1973 S.C. 2260 and Mani Subrat Jain v. State of Haryana, 1977 S.C. 276. In these cases, it was ruled that selection and the availability of the vacancies did not give a right to claim appointment. Thus, if on the date of appointment, the members of scheduled castes were adequately represented in the service, the Board could not have proceeded to appoint them merely because at the time of the issue of the advertisement, on the basis of wrong facts as admitted by the Board itself in the counter affidavit, the committee had found that certain vacancies were available.
43. In view of the above, it is held that:
1. The provision of Rule 17A is supplemental to Rule 14. It cannot be read in derogation thereof.
2. The provision of Rule 17A can be invoked only when the members of scheduled castes and tribes are not represented to the extent of 10% in any service or category or class of posts. While making special recruitment, the permitted percentage of reservation viz. 10% cannot be exceeded.
3. The point of time at which the percentage has to be seen is the date of appointment and not on the date on which the Government or the Board sends a requisition to the Public Service Commission.
4. In the present case, it is clear that the total number of posts of Executive Engineers (Electrical) was 149. 14 persons were already in position. The 15th post had to be given to Mr. Sasidharan. This promotion was due to him in October 1993. Despite this factual position, the Board had proceeded to appoint respondents 3 to 7 in O.P. No. 16534/1993. Two more persons were appointed during the pendency of the cases in the year 1994. They were even promoted to higher posts. These appointments and promotions were not in conformity with the provisions of the rules.
Resultantly, W.A. Nos. 677, 1509, 1844, 1846 and 1905 of 1998 are dismissed. W.A. No. 838 of 1998 and O.P. No. 5777 of 1999 are allowed. It is, however, directed that the selected candidates, viz. respondent Nos. 3 to 9 in O.P. No. 5777 of 1999 and others who were appointed in the year 1994, shall be allowed to continue as Executive Engineers. Their promotions to the higher posts of the Chief Engineer and Deputy Chief Engineer are set aside. These posts shall be filed up by considering the claims of eligible persons in accordance with the rules. The needful shall be done within three months from the date of receipt of a certified copy of this judgment. The claim of the special recruits for further promotion from the post of Executive Engineer shall only be considered in order of their seniority as Assistant Executive Engineers and the rules governing the matter. The parties are left to bear their own costs.